Citation Nr: 21005179 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-27 637 DATE: January 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include referral for extraschedular consideration prior to September 5, 2020, is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1964 to February 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board, most recently in May 2020, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that in May 2020, the issues of entitlement to service connection for a psychiatric disability and sleep apnea were also remanded for additional development. In a September 2020 rating decision, the Veteran was granted entitlement to service connection for sleep apnea and generalized anxiety disorder. There is no indication from the record that the Veteran has disagreed with the effective dates or ratings assigned for those disabilities. As such, that decision constitutes a complete grant of the benefit sought on appeal and the Board has limited its consideration accordingly. Entitlement to a TDIU The Veteran has asserted that he is unable to obtain and maintain gainful employment as a result of service-connected disabilities. Beginning September 5, 2020, the Veteran has been in receipt of a combined rating of 80 percent, with one disability rated 40 percent or higher. As such, the Veteran has met the schedular criteria for assignment of a TDIU beginning September 5, 2010. 38 C.F.R. § 4.16. A review of the record shows that the Veteran last worked full-time in July 2014, at which time he stopped working as a result of all his service-connected disabilities. Prior to July 2014, the Veteran had been employed full-time as a mail carrier with the United States Postal Service (USPS) since 1989. The Veteran reported that he has a college education. Being unemployed does not establish the requisite finding that the Veteran’s service-connected disabilities are the cause of a veteran’s inability to maintain substantially gainful employment. Moreover, consideration of entitlement to a TDIU requires that the service-connected disabilities not merely contribute to unemployability, but would render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2019). Such is not the case here, where numerous medical opinions provide that the Veteran’s service-connected disabilities have no impact on his ability to work. Specifically, the Veteran’s various disabilities were noted to have no impact on the Veteran’s ability to work in a March 2015 VA tinnitus examination report, an April 2015 VA hyposmia examination report, a June 2015 VA bronchial asthma and allergic rhinitis report, and an October 2017 VA sleep apnea examination report. Further, in a September 2020 VA mental health examination report, the Veteran was noted to report that the reason for his departure from employment with the USPS was not due to service-connected disabilities or claimed conditions, but rather, that he retired from his employment after receiving a diagnosis of skin cancer on his left ear. That report further details that the Veteran received a bachelor’s degree sometime in the 1970’s and worked as a social worker for thirteen years prior to his employment with the USPS. The VA examiner found that the Veteran’s service-connected generalized anxiety disorder caused symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. It was further reported that such symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Such a finding, however, does not rise to the level of rendering it impossible for the average person to follow substantially gainful employment. In support of his claim, the Veteran submitted a private medical opinion in December 2014 addressing his ability to work. The opinion is expressed in the form of a letter which states that the Veteran was 100 percent disabled and found that the Veteran’s service-connected disabilities significantly affected his ability to perform in a competitive work environment. For the following reasons, the Board finds that opinion to be less probative than the cumulative evidence of record. First, the opinion does not provide a rationale for the medical statements contained therein, but merely makes conclusory remarks. Second, although the opinion provides a medical conclusion, it is ambiguous and merely provides that the Veteran’s ability to perform in a competitive work environment is significantly impacted, which is not the requisite standard for TDIU. See 38 C.F.R. § 3.340. Finally, the letter includes a list of medical diagnoses which appear to have been the basis for the opinion and include several diagnoses for which the Veteran is not service-connected, such as posttraumatic stress disorder and bilateral deafness. An adequate medical opinion must rest on correct facts and reasoned medical judgment so as to inform the Board and facilitate the consideration and weighing of the report against any contrary opinions. See Nieves-Rodriguez, 22 Vet. App. at 304 (2008). The VA medical reports are based upon in-person examinations of the Veteran and specifically address each of the individual disabilities which the Veteran is in fact service-connected for. They are based upon accurate facts and provide statements of symptomatology along with the findings that, aside from the Veteran’s generalized anxiety disorder, there is no impact on his ability to work. The cumulative and most probative evidence of record does not support the contention that during the period on appeal, the state of the Veteran’s service-connected disabilities rose to the level of severity which would render it impossible to maintain substantially gainful employment. Therefore, the Board finds that entitlement to TDIU, on a schedular basis from September 5, 2020, is not warranted. The Board notes that prior to September 5, 2020, the Veteran’s combined rating was only 60 percent. He was service-connected for sleep apnea, allergic rhino-sinusitis, tinnitus, and hyposmia. Those disabilities cannot be combined pursuant to 38 C.F.R. § 4.16 for purposes of meeting the schedular criteria for assignment of a TDIU on a schedular basis. As such, the Veteran did not meet the schedular criteria for assignment of a TDIU prior to September 5, 2020. As far as referral of entitlement to extraschedular consideration of a TDIU prior to September 5, 2020, pursuant to 38 C.F.R. § 4.16 (b), the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, 31 Vet. App. 58 (2019), held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The record does not show that such standard has been met in this case for the period prior to September 5, 2020. The probative evidence of record does not support that the Veteran’s obstructive sleep apnea (previously rated as bronchial asthma), chronic allergic rhino-sinusitis, tinnitus and hyposmia (reduced ability to smell odors), impacted his functional abilities to the point of rendering it impossible for the average person to maintain substantially gainful employment in light of those conditions. Accordingly, a remand for such referral to the Director of Compensation Service is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include referral for extraschedular consideration, is not warranted.38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.